TERMS AND CONDITIONS

Please read these Terms and Conditions of Use carefully as by using the website you will be taken to have agreed to be bound by them. We reserve the right to vary these Terms and Conditions of Use at any time and will post any variations here. You are advised to review these Terms and Conditions of Use on a regular basis as you will be deemed to have accepted variations if you continue to use the website after they have been posted.

We take every care and precaution to ensure that information published on the website is accurate when posted and regularly updated, but we do not guarantee its accuracy and we may change the information at any time without notice.

WE PUBLISH THE WEBSITE “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF OUR SITE, THE ACCURACY OF THE INFORMATION OR THE PRODUCTS OR SERVICES REFERRED TO ON THE WEBSITE (IN SO FAR AS SUCH WARRANTIES MAY BE EXCLUDED UNDER ANY RELEVANT LAW) AND WE SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGE THAT MAY RESULT FROM USE OF THE WEBSITE AS A CONSEQUENCE OF ANY INACCURACIES IN, OR ANY OMISSIONS FROM, THE INFORMATION WHICH THEY MAY CONTAIN.

Any reference to any product or service which has been or may be provided by us or by any other company does not amount to a promise that such product or service will be available at any time. Changes to or improvements in such products or services may be made at any time without notice.

Intelligent Mobile Limited owns the copyright in the content published on the website except where otherwise indicated by a third party’s proprietary notice. Images, trade marks and brands are also protected by other intellectual property laws and may not be reproduced or appropriated in any manner without our written permission or the written permission of their respective owners. Any unauthorised use or copying of the content published on the website is strictly prohibited without our written consent.

Content and information provided by third parties other than Intelligent Mobile Limited is identified clearly where it appears. We publish this content as supplied to us and are not responsible for its accuracy or timeliness. You must take appropriate steps to verify this information before acting upon it.

We are not responsible for the content of any other website from which you have accessed the website or to which you may hyperlink from the website and cannot be held liable for any loss or damage you incur as a result of your use of any other site from which you hyperlink to or from the website.

These Terms and Conditions of Use are governed by the laws of England and you agree that the English courts shall have exclusive jurisdiction in any dispute. To the extent that any part of these Terms and Conditions of Use is found to be invalid, unlawful or unenforceable by any court of competent jurisdiction such part shall to that extent be severed from the remaining terms all of which shall remain in full force and effect as permitted by law.

Copyright (c) Intelligent Mobile 2016

INTELLIGENT PROPERTY SERVICE – TERMS & CONDITIONS OF USE

By using the Service you are agreeing to be bound by these terms and conditions.

1. DEFINITIONS
Agreement: in order of precedence the Service Order Form, these terms and conditions and the Content Specification;
Codes of Practice: the guidelines and regulations of the Regulatory Bodies and/or the Network Operators, as are issued from time to time;

Client: a limited company, partnership, sole trader or any other legal entity which has signed the Service Order Form or has registered as a user or uses the Service and includes any Affiliates of the Client (within the meaning of section 736 of the Companies Act as modified, amended or re-enacted from time to time);

Content: all or any information, data, documents, graphics, photographs, plans, software, text, videos, reports or other material of any kind created or provided by the Client for use in the Service;
Content Specification: the technical specification if attached hereto or as may form part of the Service Order Form;

Customer: users in the Territory who access the Content via the Service;

Customer Data: any records of Customers including but not limited to Customer activity, e-mail address and mobile numbers;

Force Majeure: circumstances beyond the reasonable control of a party including without limitation, acts of God, fire, flood, war, insurrection or civil disorder, requirements imposed by or pursuant to government regulation, or civil or military authorities or Network Operator or Network acts and/or omissions;
Good Industry Practice: Intelligent Property exercising the degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced mobile services provider engaged in providing a service similar to the Service, under the same or similar circumstances;
Intellectual Property Rights: any patent, trade mark, design right, copyright, database protection right, know-how and any other industrial or commercial property monopoly right whether registered or unregistered and whether presently existing or applied for;

Intelligent Property: Intelligent Mobile Limited (Company No. 266060) whose registered office is at 9-10 St Andrews Square, Edinburgh, EH2 2AF, which trades under the name “Intelligent Property”;

Network Operator: the licensed telecommunications operator or connectivity aggregator who Intelligent Property contracts with for the transmission of the Service via the Network;

Networks: the public telecommunications (or third party) systems located in the Territory and which may be used for the provision of the Content to Customers pursuant hereto;

Numbers: any telephone number(s) and/or short codes for use in respect of the Service and including any replacements;

Regulatory Bodies: any regulatory body whose function it may be (amongst other things) to enforce and administer any Codes of Practice, including (but not limited to) ICSTIS, OFCOM and the Director General of Telecommunications or other competent authority or their respective successors;

Service: the service operated by Intelligent Property under this Agreement;

Service Order Form: means the Service Order Form, which the Client signs to signify acceptance of these terms;

Territory: the UK and Northern Ireland and any other territory set out in the Service Order Form.

2. TERM & TERMINATION

2.1 This Agreement commences on the Service Commencement Date set out in the Service Order Form.

2.2 Subject to Clauses 2.4 and 2.5, this Agreement shall remain in force from the Service Commencement Date for the minimum period set out in the Service Order Form (“the Initial Licence Period”). Thereafter this Agreement shall continue indefinitely for successive periods of 12 months (each hereinafter referred to as a “Licence Period”) unless terminated earlier by either party in accordance with Clause 2.4 and 2.5 or by either party giving the other not less than 2 months’ prior written notice of termination before the end of the then relevant Licence Period.

2.3 Unless otherwise stated in the Service Order Form, if the Client wishes to terminate this Agreement on the last day of the Initial Licence Period then the Client must give Intelligent Property not less than 14 days’ prior written notice of its desire to terminate the Initial Licence Period.

2.4 Either party has the right to terminate this Agreement immediately without notice if:-
(a) the other party is subject to a bankruptcy order or becomes insolvent, threatens insolvency or makes any arrangement with or for the benefit of creditors or (if a partnership) ceases trading or is dissolved or (if a company) ceases trading or goes into compulsory or voluntary liquidation or a receiver administrative receiver or liquidator is appointed over its assets or is subject to an administration order;
(b) the other party is in material breach of any provision of this Agreement and (where such breach is remediable) fails to remedy that breach within 14 (fourteen) days of a written notice from the non-defaulting party specifying the breach; or
c) any relevant legislation, regulation or directive is implemented or modified or impacts on either party’s business to the extent it is no longer commercially viable or possible to perform the obligations set out herein.

2.5 Intelligent Property shall provide the Service which may be improved, varied, modified or extended from time to time. Intelligent Property reserves the right to withdraw the Service at anytime. In the event of such withdrawal the Client shall be refunded that part of any pre-payment or fee that relates to the remaining part of the relevant Licence Period and Intelligent Property shall not be held liable for any loss of profit, business data, contracts revenues or direct or indirect loss of whatever nature resulting from such withdrawal.

2.6 If the Client wishes to terminate this Agreement then they must do so in writing in accordance with Clause 10.

3. GRANT OF LICENCE & SERVICE PROVISIONS

3.1 Licence: The Client grants to Intelligent Property an exclusive, royalty free licence in the Territory to transmit the Content through the Service.

3.2 Service Provisions: Intelligent Property shall provide the Service to the Client with all reasonable skill and care and in accordance with Good Industry Practice. Given the nature of the Internet and mobile networks and the acts of third parties which are beyond the reasonable control of Intelligent Property, Intelligent Property does not warrant or guarantee that the Service shall be continuous, or will be free from faults or that Content will always be delivered to end users.

3.3 Format & Branding: The Client and Intelligent Property shall decide upon the graphical design, presentation and/or “look and feel” of the Content. The Service and Content shall be branded as a Client service supplied by Intelligent Property.

3.4 Marketing & Compliance: Intelligent Property shall be available to assist and advise the Client on how best to market the Service and ensure compliance with any relevant Codes of Practice. Intelligent Property may for technical, operational or legal reasons recall, withdraw or change any text codes or short code numbers allocated to the Client at any time. Intelligent Property shall inform the Client as soon as is reasonable practicable of any such changes and, where required, shall provide the Client with alternative text codes and/or short code numbers. In the event of Intelligent Property making such changes that require changes to be made to the Client’s property boards, then Intelligent Property shall at its cost provide the Client with materials/stickers to update their property boards and the Client shall thereafter as soon as is reasonably practicable update their property boards. 3.4 Customer Care: Intelligent Property will provide the first line support and customer care to Customers in accordance with Good Industry Practice.

3.5 Data Protection: To the extent that any data protection, privacy or similar laws (“Data Protection Laws”) (as may be further amended, supplemented or replaced from time to time) apply to this Agreement or Customer Data each party agrees to be bound by, and comply with, the provisions of such Data Protection Laws. The Client acknowledges that Law expressly forbids the use of spam (sending of unsolicited SMS messages and e-mails) and the Client undertakes that all Content transmitted through the Service and all use by it of information from the Service shall be lawful and shall at all times conform to the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003, and any amendments or replacements thereof.

3.6 Client Co-operation and Assistance for Auto Uploads: The Client agrees, where an automatic upload feed is in place, to provide or procure (so far as the Client is able) that Intelligent Property receives the Content 24/7/52 weeks per year (unless stated otherwise to the contrary) and to use all reasonable endeavours to correct all errors or defects in the Content or its delivery to Intelligent Property as soon as practicable and without cost to Intelligent Property. The Client further agrees to advise Intelligent Property of any agreements or documents (other than the Service Order Form) which affect the use of the Content. The Client agrees to give Intelligent Property all reasonable assistance to test the correct functioning of the Content within the Service and over the Networks and provide reasonable assistance to Intelligent Property in arranging and effecting the connectivity to any systems and accurately describe and provide all relevant technical details relating to the operation of the Content and an Auto Upload feed (if relevant) within the Service Order Form and Content Specification. Intelligent Property may pass on to the Client at cost any fees charged by a supplier of the Client for providing a data feed to Intelligent Property.

4. FEES

4.1 In consideration of the due and punctual performance by Intelligent Property of its obligations under this Agreement the Client shall pay to Intelligent Property the fees detailed in the Service Order Form within 30 calendar days of the invoice date.

4.2 Intelligent Property reserves the right at its discretion to charge the higher of either the statutory rate of interest for late payments or interest at 2 per cent per month, above the base lending rate of the Bank of England on any sum not paid on the due date, together with all costs of recovery. Such interest shall run from day to day and accrue until full payment has been made. The Client is required to notify Intelligent Property within 10 calendar days of its receipt of an invoice if it has any question, which would lead it to dispute an invoice or part thereof.

4.3 Intelligent Property reserves the right to alter the pricing details and charges provided that it gives the Client not less than 2 months prior notice to the end of the preceding Licence Period unless an exceptional charge out with the control of Intelligent Property is imposed by the Network Operators, in which case, such charge will be deemed to take effect within 7 days of issue of a written notice to the Client.

4.4 Intelligent Property may require the Client to enter into a standing order or direct debit arrangement for payment of agreed fees and Intelligent Property may suspend the provision of the Service in the event that the Client cancels that arrangement once commenced.

4.5 Unless stated otherwise herein to the contrary, any sum of money referred to in this Agreement shall be payable in Great British Pounds and is exclusive of VAT which should be added to such sum where and when required in accordance with prevailing legislation.

5. INTELLECTUAL PROPERTY RIGHTS

5.1 All Intellectual Property Rights in the Content belong to the Client. Nothing in this Agreement shall transfer any ownership, or any aspect of ownership in and to the Content, the Client’s trademarks, brands or logos to Intelligent Property. Further, nothing in this Agreement shall be deemed to grant to Intelligent Property a licence in the Client Intellectual Property Rights except as expressly set out in Clause 3.1.

5.2 All Intellectual Property Rights in and to the Service (excluding the Content), the Numbers and the Intelligent Property trademarks, brands and logos belong to Intelligent Property. Nothing in this Agreement shall transfer ownership, or any aspect of ownership in and to the Service, the Numbers or the Intelligent Property trademarks, brands or logos to the Client. Further, nothing in this Agreement shall be deemed to grant to the Client a licence in Intelligent Property’s Intellectual Property Rights. The Client acknowledges that the content and design of the Service and all underlying compilations and source code are subject to copyright and other Intellectual Property Rights owned by Intelligent Property and the Client warrants that at no time, whether now or in the future, shall it attempt to build a copy of or reverse engineer any part or process of the Service. The Client further acknowledges and agrees that Intelligent Property shall have control over and ownership of the format and content of all e-mails transmitted through the Service.

6. LIMITATION OF LIABILITY

6.1 Neither party shall be liable for any failure to meet its obligations under this Agreement as a result of a Force Majeure event.

6.2 Intelligent Property will not be liable to the Client for loss of profit, loss of business, depletion of goodwill or any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever which arise out of or in connection with this Agreement.

6.3 Save in the case of liability for death or personal injury caused by negligence, Intelligent Property’s maximum aggregate liability under the provisions of this Agreement shall be limited to the amount of the total fee payments made to Intelligent Property by the Client for the preceding 12 (twelve) months or part thereof including all liabilities to the Client whether contractual, tortuous or otherwise.

7. CONSEQUENCES OF TERMINATION

7.1 Termination of this Agreement for any reason shall be without prejudice to any rights that either party may have against the other under this Agreement, which have accrued up to the date of termination.

7.2 Promptly upon on termination of this Agreement for whatever reason:
(a) the license granted under Clause 3.1 shall terminate;
(b) Intelligent Property will as soon as practicable remove the Content from the Service;
(c) the parties shall, as soon as practicable, remove and cease to use any and all of the other party’s trademarks in or surrounding the Content and/or from marketing or promotional literature;
(d) all outstanding or accrued amounts due by either party shall become due and payable in accordance with the terms of this Agreement; and
(e) both parties shall purge from their computer systems, storage media and other files and at the other party’s option destroy or deliver to the other all items within that party’s possession or control that contain any information relating to the Service or bear the other party’s trade mark.

7.3 The Client agrees and undertakes that for a period of 12 months from termination or expiry of this Agreement, the Client shall not develop software or services that are materially similar to the Service and which compete directly with the business of Intelligent Property.

7.4 On termination of this Agreement (howsoever caused) those provisions under this Agreement capable of surviving termination including but not limited to the Clauses headed Confidentiality, Intellectual Property Rights, Limitation of Liability and Data Protection shall continue in full force and effect.

8. CONFIDENTIALITY

8.1 The parties shall each keep in confidence any information (whether written or oral) of a confidential nature (“Confidential Information”) obtained under or in connection with this Agreement and will not (without the prior written consent of the other party) disclose that Confidential Information to any person other than the parties employees or professional advisers. For the purposes of this Clause Confidential Information includes but is not limited to the confidential commercial, financial, marketing, business and technical or other data, know-how, trade secrets.

8.2 The Client agrees and undertakes to safeguard as private and confidential all aspects of and access to the Intelligent Property’s software and the System and in no circumstances shall the Client allow any person (be they an employee, third party, agent, advisor or otherwise) access to any part of the Intelligent Property’s software or system for the purposes of either:-

8.2.1 internally developing a software system or service similar to or a copy of Intelligent Property’s software and/or the Service; or

8.2.2 creating a software specification for a third party or assisting a third party to develop software or a service or system that is similar to or a copy of Intelligent Property’s software and/or the Service. 9.

9. AMENDMENTS
Any variation to this Agreement must be in writing and signed by or on behalf of an authorised person of both parties.

10. NOTICES
Any invoice, notice or other communication to be given under this Agreement must be in writing and may be hand delivered or sent by pre-paid first class letter post or facsimile transmission to the party address set out in this Agreement or any such other address as notified in writing. Any notice shall be deemed served if hand delivered at the time of delivery; if posted 3 (three) days after posting; and if sent by facsimile transmission, when the sender’s facsimile system generates a message confirming successful transmission of the total number of pages of the notice during normal UK business hours. Notice of termination of this Agreement in accordance with Clause 2 must comply with the terms of this Clause 10 and shall not be effective if sent by e-mal or given orally.

11. PUBLICITY
Neither party shall make any announcement, press release or reference in any marketing or promotional material concerning the subject matter of this Agreement without the prior written consent of the other (not to be unreasonably withheld or delayed) except Intelligent Property may for its own promotional purposes on its website and in other promotional material list itself as a supplier to the Client.

12. ASSIGNMENT & SUBCONTRACTING
Intelligent Property may assign or transfer any of its rights, benefits or obligations under this Agreement. Intelligent Property shall be entitled to subcontract the performance of any of its obligations under this Agreement provided always that where it sub-contracts the provisions of such services it shall do so using reasonable care in the selection of the third party service provider. The Client shall not be entitled to assign this Agreement nor all or any of its rights and obligations hereunder nor sub-license the use (in whole or in part) of any part of the Service without Intelligent Property’s prior written consent, which consent shall not be unreasonably withheld.

13. ENTIRE AGREEMENT
This Agreement and any Service Order Form and any Content Specification attached hereto contains the whole agreement between the parties in relation to its subject matter and supersedes all previous contracts, promises, representations, warranties or arrangements between the parties whether written or oral.

14. THIRD PARTY RIGHTS
The provisions of this Agreement are for the benefit of the parties and are also intended to be for the benefit of each Network Operator and/or Regulatory Body who currently is, or is subsequently relevant to this Agreement. Save as provided in this Clause, this Agreement is not intended to confer upon any person except the parties any rights or remedies hereunder. No person other than a Network Operator and Regulatory Body described above who is not a party to this Agreement shall have any right to enforce any of its terms pursuant to the Contracts (Rights of Third Parties) Act 1999.

15. SEVERABILITY
If any court of competent jurisdiction holds any provision of this Agreement invalid, illegal or unenforceable for any reason, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect so as to leave the validity of the other provisions of this Agreement in tact.

16 INTERPRETATION AND CONSTRUCTION
In this Agreement unless the context otherwise requires (a) words importing the singular include the plural and vice versa, (b) a reference to a law includes a reference to that law as amended, consolidated or replaced, (c) headings are for convenience only and do not affect the interpretation of this Agreement, (d) this Agreement may not be construed adversely to a party solely because that party prepared it and (e) unless the context otherwise so requires references to the Client and Intelligent Property include their permitted successors and assigns.

17. GOVERNING LAW
The governing law of this Agreement shall be English Law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English Courts. Copyright © Intelligent Mobile
Intelligent Mobile Limited’s Mobile Messenger – Terms & Conditions of Use

INTRODUCTION
By registering for, or using the Mobile Messenger Service (as defined below) you agree that you have read, understand and are bound by these terms and conditions, regardless of how you registered for or use the Mobile Messenger Service.
If you do not want to be bound by these terms and conditions, you must not register for, or use the Mobile Messenger Service.

If you have concluded a written contract with us or signed a Mobile Messenger Service Order Form (as defined below), you will also be bound by these terms and conditions. However, to the extent that there is a conflict between the written contract or the Mobile Messenger Service Order Form and these terms and conditions, the written contract or Mobile Messenger Service Order From will prevail.

INTELLIGENT MOBILE LIMITED DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE INSTRUCTIONS CONTAINED IN THIS DOCUMENT. IN NO EVENT SHALL INTELLIGENT MOBILE LIMITED BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS), EVEN IF INTELLIGENT MOBILE LIMITED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Intelligent Mobile may change these terms and conditions at any time and in the event of doing so the new terms and conditions will be posted at www.intelligentmobile.com or at such other URL that is otherwise notified to you. Hyperlinks in these terms and conditions form part of these terms and conditions. Any hyperlinks which are not operational will not in any way detract from the validity and interpretation of these terms and conditions. These terms and conditions do not affect or alter any other agreements that you may have with Intelligent Mobile Limited that do not relate specifically to the Mobile Messenger Service.

1. DEFINITIONS

Agreement: the agreement between us and you that comes about by your acceptance of these terms and conditions as set out in the section headed “Introduction” above;

Codes of Practice: the guidelines and regulations of the Regulatory Bodies and/or the Network Operators, as are issued from time to time;

Client/you: a limited company, partnership, sole trader or any other legal entity which has signed the Service Order Form or has registered as a user or uses the Mobile Messenger Service and includes any Affiliates of the Client (within the meaning of section 736 of the Companies Act as modified, amended or re-enacted from time to time);

Content: all or any information, data, documents, graphics, photographs, plans, software, text, videos, reports or other material of any kind created or provided by the Client for use in the Mobile Messenger Service;

Content Specification: the technical specification (if any) set out in the Mobile Messenger Service Order Form;

Customer: users in the Territory who access the Content via the Mobile Messenger Service;

Customer Data: any records of Customers including but not limited to Customer activity, e-mail address and mobile numbers;

Force Majeure: circumstances beyond the reasonable control of a party including without limitation, acts of God, fire, flood, war, insurrection or civil disorder, requirements imposed by or pursuant to government regulation, or civil or military authorities or Network Operator or Network acts and/or omissions;

Good Industry Practice: Intelligent Mobile exercising the degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced mobile services provider engaged in providing a service similar to the Mobile Messenger Service, under the same or similar circumstances;

Intellectual Property Rights: any patent, trade mark, design right, copyright, database protection right, know-how and any other industrial or commercial property monopoly right whether registered or unregistered and whether presently existing or applied for;

Intelligent Mobile/us: Intelligent Mobile Limited (Company No. 266060) whose registered office is at 9-10 St Andrews Square, Edinburgh EH2 2AF, which trades under the names “Intelligent Mobile” and “Intelligent Property”;

Network Operator: the licensed telecommunications operator or connectivity aggregator who Intelligent Mobile contracts with for the transmission of the Mobile Messenger Service via the Network;

Networks: the public telecommunications (or third party) systems located in the Territory and which may be used for the provision of the Content to Customers pursuant hereto;

Numbers: any telephone number(s) and/or short codes for use in respect of the Mobile Messenger Service and including any replacements;

Regulatory Bodies: any regulatory body whose function it may be (amongst other things) to enforce and administer any Codes of Practice, including (but not limited to) PhonepayPlus, OFCOM and the Director General of Telecommunications or other competent authority or their respective successors;

Mobile Messenger Service: the service operated by Intelligent Mobile under this Agreement that enables you to send and receive SMS text messages to any mobile phone from any web-connected PC and view their delivery success;
Mobile Messenger Service Order Form: means the Mobile Messenger Service Order Form signed by you (if applicable);

Territory: the UK and Northern Ireland and any other territory set out in the Mobile Messenger Service Order Form.

2. TERM & TERMINATION

2.1 You may cease use of the Mobile Messenger Service at any time without notice. 2.2 In the event of termination or suspension of Mobile Messenger Service any monies owing by you become due immediately.

2.3 Intelligent Mobile reserves the right to suspend your use of any of the Mobile Messenger Service without notice in the event of non-payment of overdue invoices or inappropriate use of the service.

2.4 Intelligent Mobile shall provide the Mobile Messenger Service which may be improved, varied, modified or extended from time to time. Intelligent Mobile reserves the right to withdraw the Mobile Messenger Service at anytime. In the event of such withdrawal the Client shall be refunded that part of any pre-payment or fee made. If you wish to terminate the Mobile Messenger Service then you should make sure you have used any pre-paid SMS credits first as no refunds are available.

3. MOBILE MESSENGER SERVICE PROVISIONS

3.1 Service Provisions: Intelligent Mobile shall provide the Mobile Messenger Service to the Client with all reasonable skill and care and in accordance with Good Industry Practice. Given the nature of the Internet and mobile networks and the acts of third parties which are beyond the reasonable control of Intelligent Mobile, Intelligent Mobile does not warrant or guarantee that the Mobile Messenger Service shall be continuous, or will be free from faults or that Content will always be delivered to end users.

3.2 Customer Care: Intelligent Mobile will provide the first line support and customer care to Clients in accordance with Good Industry Practice.

3.3 Data Protection: To the extent that any data protection, privacy or similar laws (“Data Protection Laws”) (as may be further amended, supplemented or replaced from time to time) apply to this Agreement or Customer Data each party agrees to be bound by, and comply with, the provisions of such Data Protection Laws. The Client acknowledges that Law expressly forbids the use of spam (sending of unsolicited SMS messages and e-mails) and the Client undertakes that all Content transmitted through the Mobile Messenger Service and all use by it of information from the Mobile Messenger Service shall be lawful and shall at all times conform to the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003, and any amendments or replacements thereof.

3.4 Content Intelligent Mobile processes messages on an automated basis. Intelligent Mobile is not responsible for the Content or contents of a message or of its accuracy. Intelligent Mobile transmits messages in good faith and cannot be held responsible for the views or opinions of any Content.

3.5 Appropriate Usage of Service When you register, you must submit correct information regarding your identity, organisation and address details. It is not permitted to use any of the Intelligent Mobile services for illegal or unreasonable activities. Clients who send threatening or demeaning messages will have their Mobile Messenger account at Intelligent Mobile closed. Intelligent Mobile does not permit SMS “spam” and will close the account of any person or organisation who engages in unsolicited bulk messaging. Deliberate misuse of the Intelligent Mobile service, including obtaining message credits by deceit, will cause the Client account to be closed immediately. In the event of closure of the account any outstanding monies will fall due immediately. If you have not followed the above guidelines, you agree to indemnify us against any costs or losses we may incur as a result of any claims or legal proceedings that are brought or threatened against us by any third party.

3.6 Security During registration of your account we will issue you with an administrator password which will enable you to set up other user names and passwords. These are essential for your organisation’s secure use of the service. You will be responsible for keeping this information confidential and agree to take all necessary steps to ensure that it is kept secure and not disclosed to any unauthorised person. If you believe that your username or password has been discovered or is being misused by someone else, then you must tell us immediately and take all steps necessary (or requested by us) to prevent such use. If we think there is likely to be a misuse of the Mobile Messenger Service because of a breach of security we may either suspend your use of the Mobile Messenger Service or change your password and then notify you of this.

4. CHARGES

4.1 All charges are in pounds sterling and exclude VAT, which will be applied at 20%, where applicable. The charges that apply to you are stated in the Service Order Form.

4.2 You will receive a monthly invoice from us for the messages that you sent in the previous calendar month. You agree to pay to Intelligent Mobile within 30 calendar days of the invoice date.
Please note that when sending text messages that comprises of more than 160 characters the following character count applies for the purposes of charging:-
160 characters or less = 1 SMS message unit;
306 characters or less = 2 SMS message units;
459 characters or less = 3 SMS messages units;
612 characters or less = 4 SMS messages units (the maximum).

4.3 Intelligent Mobile reserves the right at its discretion to charge the higher of either the statutory rate of interest for late payments or interest at 2 per cent per month, above the base lending rate of the Bank of England on any sum not paid on the due date, together with all costs of recovery. Such interest shall run from day to day and accrue until full payment has been made. The Client is required to notify Intelligent Mobile within 10 calendar days of its receipt of an invoice if it has any question, which would lead it to dispute an invoice or part thereof.

4.4 Intelligent Mobile reserves the right to alter the pricing details and charges at any time provided that it gives the Client not less than 30 days prior notice unless an exceptional charge out with the control of Intelligent Mobile is imposed by the Network Operators, in which case, such charge will be deemed to take effect within 7 days of issue of a written notice to the Client.

4.5 Intelligent Mobile may require the Client to enter into a standing order or direct debit arrangement for payment of agreed fees and Intelligent Mobile may suspend the provision of the Mobile Messenger Service in the event that the Client cancels that arrangement once commenced.

5. INTELLECTUAL PROPERTY RIGHTS

5.1 All Intellectual Property Rights in the Content belong to the Client. Nothing in this Agreement shall transfer any ownership, or any aspect of ownership in and to the Content, the Client’s trademarks, brands or logos to Intelligent Mobile.

5.2 All Intellectual Property Rights in and to the Mobile Messenger Service (excluding the Content), the Numbers and the Intelligent Mobile trademarks, brands and logos belong to Intelligent Mobile. Nothing in this Agreement shall transfer ownership, or any aspect of ownership in and to the Mobile Messenger Service, the Numbers or the Intelligent Mobile trademarks, brands or logos to the Client. Further, nothing in this Agreement shall be deemed to grant to the Client a licence in Intelligent Mobile’s Intellectual Property Rights. The Client acknowledges that the content and design of the Mobile Messenger Service and all underlying compilations and source code are subject to copyright and other Intellectual Property Rights owned by Intelligent Mobile and the Client warrants that at no time, whether now or in the future, shall it attempt to build a copy of or reverse engineer any part or process of the Mobile Messenger Service.

6. LIMITATION OF LIABILITY

6.1 Neither party shall be liable for any failure to meet its obligations under this Agreement as a result of a Force Majeure event.

6.2 Intelligent Mobile will not be liable to the Client for loss of profit, loss of business, depletion of goodwill or any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever which arise out of or in connection with this Agreement.

6.3 Save in the case of liability for death or personal injury caused by negligence, Intelligent Mobile’s maximum aggregate liability under the provisions of this Agreement shall be limited to the lower of (a) £500 or (b) the amount of the total fee payments made to Intelligent Mobile by the Client for the preceding 12 (twelve) months or part thereof including all liabilities to the Client whether contractual, tortuous or otherwise.

7. CONSEQUENCES OF TERMINATION

7.1 Termination of this Agreement for any reason shall be without prejudice to any rights that either party may have against the other under this Agreement, which have accrued up to the date of termination.

7.2 Promptly upon on termination of this Agreement for whatever reason: a) Intelligent Mobile will as soon as practicable remove the Content from the Mobile Messenger Service; b)all outstanding or accrued amounts due by either party shall become due and payable in accordance with the terms of this Agreement; and c) both parties shall purge from their computer systems, storage media and other files and at the other party’s option destroy or deliver to the other all items within that party’s possession or control that contain any information relating to the Mobile Messenger Service or bear the other party’s trade mark.

7.3 The Client agrees and undertakes that for a period of 12 months from termination or expiry of this Agreement, the Client shall not develop software or services that are materially similar to the Mobile Messenger Service and which compete directly with the business of Intelligent Mobile.

7.4 On termination of this Agreement (howsoever caused) those provisions under this Agreement capable of surviving termination including but not limited to the Clauses headed Confidentiality, Intellectual Property Rights, Limitation of Liability and Data Protection shall continue in full force and effect.

8. CONFIDENTIALITY

8.1 The parties shall each keep in confidence any information (whether written or oral) of a confidential nature (“Confidential Information”) obtained under or in connection with this Agreement and will not (without the prior written consent of the other party) disclose that Confidential Information to any person other than the parties employees or professional advisers. For the purposes of this Clause Confidential Information includes but is not limited to the confidential commercial, financial, marketing, business and technical or other data, know-how, trade secrets.

8.2 The Client agrees and undertakes to safeguard as private and confidential all aspects of and access to the Intelligent Mobile’s software and all aspects of the Intelligent Mobile system and in no circumstances shall the Client allow any person (be they an employee, third party, agent, advisor or otherwise) access to any part of the Intelligent Mobile’s software or system for the purposes of either:-

8.2.1 internally developing a software system or service similar to or a copy of Intelligent Mobile’s software and/or the Mobile Messenger Service; or

8.2.2 creating a software specification for a third party or assisting a third party to develop software or a service or system that is similar to or a copy of Intelligent Mobile’s software and/or the Mobile Messenger Service.

9. AMENDMENTS
Any variation to this Agreement must be in writing and signed by or on behalf of an authorised person of both parties.

10. NOTICES
Any notices must be sent by receipted e-mail, post or delivered by hand as follows: 10.1 To you, at the address you have given us or the email address given to us in your registration details;

10.2 To us by email or by post to our registered office at 119-121 Leith Walk, Edinburgh EH6 8NP or such other address as may be notified to you.

11. PUBLICITY
Neither party shall make any announcement, press release or reference in any marketing or promotional material concerning the subject matter of this Agreement without the prior written consent of the other (not to be unreasonably withheld or delayed) except Intelligent Mobile may for its own promotional purposes on its website and in other promotional material list itself as a supplier to the Client.

12. ASSIGNMENT & SUBCONTRACTING
Intelligent Mobile may assign or transfer any of its rights, benefits or obligations under this Agreement. Intelligent Mobile shall be entitled to subcontract the performance of any of its obligations under this Agreement provided always that where it sub-contracts the provisions of such services it shall do so using reasonable care in the selection of the third party service provider. The Client shall not be entitled to assign this Agreement nor all or any of its rights and obligations hereunder nor sub-license the use (in whole or in part) of any part of the Mobile Messenger Service without Intelligent Mobile’s prior written consent, which consent shall not be unreasonably withheld.

13. ENTIRE AGREEMENT
This Agreement contains the whole agreement between the parties in relation to its subject matter and supersedes all previous contracts, promises, representations, warranties or arrangements between the parties whether written or oral. This Agreement in no way affects or varies any other agreements or contracts that you may have with Intelligent Mobile.

14. THIRD PARTY RIGHTS
The provisions of this Agreement are for the benefit of the parties and are also intended to be for the benefit of each Network Operator and/or Regulatory Body who currently is, or is subsequently relevant to this Agreement. Save as provided in this Clause, this Agreement is not intended to confer upon any person except the parties any rights or remedies hereunder. No person other than a Network Operator and Regulatory Body described above who is not a party to this Agreement shall have any right to enforce any of its terms pursuant to the Contracts (Rights of Third Parties) Act 1999.

15. SEVERABILITY
If any court of competent jurisdiction holds any provision of this Agreement invalid, illegal or unenforceable for any reason, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect so as to leave the validity of the other provisions of this Agreement in tact.

16 INTERPRETATION AND CONSTRUCTION
In this Agreement unless the context otherwise requires (a) words importing the singular include the plural and vice versa, (b) a reference to a law includes a reference to that law as amended, consolidated or replaced, (c) headings are for convenience only and do not affect the interpretation of this Agreement, (d) this Agreement may not be construed adversely to a party solely because that party prepared it and (e) unless the context otherwise so requires references to the Client and Intelligent Mobile include their permitted successors and assigns.

17. GOVERNING LAW
The governing law of this Agreement shall be English Law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English Courts.

No part of this document may be reproduced or transmitted in any form by any means, electronic or mechanical, for any purpose, without the express written permission of Intelligent Mobile Limited.

 

© Intelligent Mobile Limited (Co No 266060).